Harmon v. Levenson

534 So. 2d 486, 1988 WL 127037
CourtLouisiana Court of Appeal
DecidedNovember 16, 1988
Docket88-CA-349
StatusPublished
Cited by7 cases

This text of 534 So. 2d 486 (Harmon v. Levenson) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Harmon v. Levenson, 534 So. 2d 486, 1988 WL 127037 (La. Ct. App. 1988).

Opinion

534 So.2d 486 (1988)

Freddy J. HARMON, et al.
v.
Leslie W. LEVENSON, M.D. and Charles Steiner, M.D.

No. 88-CA-349.

Court of Appeal of Louisiana, Fifth Circuit.

November 16, 1988.

*487 Cummings, Cummings & Dudenhefer, Donna S. Cummings, New Orleans, for plaintiffs-appellants.

Adams and Reese, Edward J. Rice, Jr., New Orleans, for defendants-appellees.

Before CHEHARDY, C.J., and WICKER and GOTHARD, JJ.

CHEHARDY, Chief Judge.

Freddy Harmon, and his children, Denise A. Harmon, Freddy J. Harmon, Jr., and Ann M. Harmon, appeal a judgment dismissing their medical malpractice suit against Leslie W. Levenson, M.D., and Charles Steiner, M.D. The wrongful death and survival action was instituted by plaintiffs as a result of the death of Barbara Harmon, wife of Freddy Harmon and mother of the other plaintiffs, while she was defendants' patient at West Jefferson General Hospital in Marrero, Louisiana. We affirm.

The issue presented on this appeal is whether the trial judge was manifestly erroneous in finding the plaintiffs failed to bear their burden of proof and, consequently, in dismissing plaintiffs' suit for damages.

Barbara Harmon began experiencing shortness of breath in September 1982. In January 1983 she was hospitalized for a series of gastrointestinal tests, at which time she was referred by her family physician to Dr. Levenson, a cardiologist. After she was examined and tested, Mrs. Harmon was diagnosed as suffering from primary pulmonary hypertension of unknown etiology, a fatal disease with a poor life-span prognosis. Mrs. Harmon then was placed on an anticoagulant (blood-thinning) medication, Coumadin, in order to prevent blood clots, a common cause of death to victims of this disease.

On February 2, 1983, Mrs. Harmon began suffering respiratory discomfort and hemoptysis (coughing up blood). She was examined by Dr. Levenson at 2:00 P.M. at West Jefferson General Hospital and subsequently admitted, at which time blood gas studies were done and chest x rays taken. That evening she was given Valium to calm her and oxygen to assist her breathing.

During the evening Mrs. Harmon's progress was followed by Dr. Charles Steiner, an associate of Dr. Levenson who was familiar with Mrs. Harmon's case. He did not visit the patient during the evening or night, but remained in contact with the nursing staff. She continued to suffer from shortness of breath and hemoptysis without any significant change.

The following morning at 10:00 A.M. Mrs. Harmon's condition began to deteriorate. Dr. Levenson ordered new blood gas studies and took her off Coumadin. She was transferred to the intensive care unit, where breathing therapy ensued and Dr. Eugene Rosenberg, a pulmonary medicine specialist, was consulted. Following Dr. Rosenberg's examination, the doctors decided to restart Mrs. Harmon on another anticoagulant (Heparin) because both doctors were primarily concerned with preventing blood clots (emboli). When it became obvious Mrs. Harmon was having more bleeding problems, Heparin was discontinued. Despite these efforts, Mrs. Harmon's condition continued to deteriorate and she died the following morning from extensive pulmonary hemorrhaging in both lungs.

*488 Subsequently a medical review panel was convened. Following a decision in defendants' favor, plaintiffs filed suit. On January 26, 1988, a non-jury trial was held; on February 26, 1988, the trial judge rendered judgment in defendants' favor, dismissing plaintiffs' suit.

In a medical malpractice action the plaintiff bears the burden of proving the following facts:

"(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians, dentists, or chiropractic physicians licensed to practice in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues peculiar to the particular medical specialty involved, then the plaintiff has the burden of proving the degree of care ordinarily practiced by physicians, dentists, or chiropractic physicians within the involved medical specialty.
(2) That the defendant either lacked this degree of knowledge or skill or failed to use reasonable care and diligence, along with his best judgment in the application of that skill, and
(3) That as a proximate result of this lack of knowledge or skill or the failure to exercise this degree of care the plaintiff suffered injuries that would not otherwise have been incurred." LSA-R.S. 9:2794(A).

In order to determine whether or not that burden has been met, the courts rely on expert witnesses who are members of defendant's profession and are qualified to testify. Coleman v. Touro Infirmary of New Orleans, 506 So.2d 571 (La. App. 4 Cir.1987), writ denied 507 So.2d 1247, 1248. These experts' views are persuasive, although not controlling. Id.

In general the opinion of an expert is given weight dependent upon his qualifications and experience, as well as upon the facts, including studies, upon which his opinion is based. Nettles Excavators, Inc. v. Certain-Teed Prods., 351 So.2d 1258 (La.App. 1 Cir.1977), writ denied 353 So.2d 1045 (La.1978). The opinion of an expert as to matters within his field is entitled to greater weight than the opinion on the same subject by a specialist in another field. Faust v. Lombardo, 463 So.2d 745 (La.App. 4 Cir.1985), writ denied 464 So.2d 1380.

At oral argument of this matter plaintiffs' counsel referred us to a recent medical malpractice decision of the Louisiana Supreme Court, Pitre v. Opelousas General Hospital, 530 So.2d 1151 (La.1988). In Pitre, the court discussed the duty of care owed by a physician in his profession:

"A physician has special legal obligations in connection with his profession. As any person, he `is responsible for the damage he occasions not merely by his act, but by his negligence, his imprudence, or his want of skill.' La.Civ.Code art. 2316 (West 1988). Additionally, a general practitioner is obliged to possess the degree of knowledge or skill possessed, and to exercise the degree of care ordinarily exercised, by physicians actually practicing in a similar community under similar circumstances; a physician practicing in a specialty is required to exercise the degree of care ordinarily practiced by doctors in that specialty. La.Rev.Stat. 9:2794(A)(1). The violation of those obligations constitutes a fault which must be evaluated, taking into account the professional practices and customs by comparing the conduct of the author of the damage with the normal and regular activity of a person exercising the same profession. 2 M. Planiol, Treatise on the Civil Law, part 1 § 865A (1959)."

Plaintiffs contend Mrs. Harmon died as a result of substandard treatment and care by Drs. Levenson and Steiner. They assert her death was caused by extensive bleeding into both lungs and not by her disease or by pulmonary emboli. They contend the defendants failed to manage the dosage of the anticoagulant properly, which in turn caused the hemorrhaging, and failed to treat the hemorrhaging properly *489 after she was admitted to the hospital on February 2, 1983.

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534 So. 2d 486, 1988 WL 127037, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harmon-v-levenson-lactapp-1988.